SPICe published its briefing on the Retained EU Law and the Retained EU Law (Revocation and Reform) Bill (“the Bill”), which is currently going through the UK Parliament, on 7 November 2022. The Constitution, Europe, External Affairs and Culture Committee considered retained EU law and the Bill at its meeting on 10 November 2022. At the time the briefing was published, the Scottish Government had not lodged a legislative consent memorandum (LCM) on the Bill. On 8 November 2022 the Scottish Government lodged an LCM on the Bill.
This blog considers the Scottish Government’s LCM on the Bill. The blog does not seek to explain what retained EU law (REUL) is, nor describe the Bill in detail. For more background information, read an earlier SPICe blog ‘Retained EU law: what’s it all about’ and the SPICe briefing ‘Retained EU Law and the Retained EU Law (Revocation and Reform) Bill’.
Does the LCM recommend that the Scottish Parliament consents to the Bill?
No. The Scottish Government recommends that the Parliament does not give consent to the Bill.
Why does the LCM recommend that the Parliament does not consent?
The Scottish Government argues in the LCM that the Scottish Parliament should not consent to the Bill for three key reasons.
- That the Bill sets a “deregulatory agenda” which “poses risks to important protections and high standards”.
- That the Bill “significantly undermines devolution”.
- That the sunset (end 2023 – this is the date on which REUL will be revoked automatically if steps are not taken to save it) set out in the Bill is “impractical and unachievable”. The Scottish Government argues in the LCM that the sunset approach “brings significant risk to the coherence of the statute book” and that the end 2023 date imposes “unrealistic burdens on both government and Parliamentary resources to complete the necessary work to preserve REUL in the available time”.
The Scottish Government also indicates in the LCM that there are some areas (clauses 4,5,6, 19-21 and Schedule 1 of the Bill) where the need for legislative consent is disputed:
“There are a number of clauses which the Scottish Government considers to require the legislative consent of the Scottish Parliament, but which the UK Government does not.”
The ‘deregulatory agenda’
In essence, retained EU law is a copy of the EU law that used to apply when the UK was a member of the EU. These laws and rights were brought into domestic law as a new body of law called “Retained EU law”.
The Bill provides a ‘sunset’ on REUL, meaning that most REUL which is not specifically kept (by Ministers actively taking steps to keep a piece of legislation on the statute book) will be automatically repealed (i.e. it will no longer be law) on 31 December 2023. The Bill can be seen as ‘deregulatory’ because, unless steps are taken to save laws, it removes laws.
The Scottish Government believes that getting rid of the body of legislation known as REUL in the way set out in the Bill would be detrimental to Scotland. The LCM states:
“EU law provides for high standards across a range of important areas including devolved matters, such as the environment and agriculture, and reserved matters such as employment law. The Bill risks 47 years of these protections gained via EU membership, and could usher in a deregulated race to the bottom, for society and economy.”
It’s important to note that Scottish Ministers are already committed to keeping Scots Law aligned with EU law where they think it appropriate. Scottish Ministers have a number of different legislative options for securing that alignment. Part 1 (section 1(1)) of the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021 confers a power on Scottish Ministers to allow them to make regulations (secondary legislation) with the effect of continuing to keep Scots law aligned with EU law in some areas of devolved policy. This is known as the “keeping pace” power. SPICe has written a blog on the keeping pace power which may be of interest.
Impact on devolution
The Bill gives powers to UK Ministers and Ministers of the devolved authorities in Scotland, Wales and Northern Ireland to enable them to amend, revoke or retain pieces of REUL. Powers in other acts are modified to enable them to be used to amend most REUL by secondary legislation.
The Scottish Government’s LCM states that:
“the Bill is another example of a UK Bill that gives UK Ministers powers to act in devolved areas without a formal legal requirement for consent from Scottish Ministers, accountable to the Scottish Parliament for the exercise of that consent. Both the Scottish Government and the Scottish Parliament have made clear their increasing concern at the UK Government taking more of powers in Westminster legislation, without the consent of the Scottish Parliament, as they undermine democratic accountability and responsibility for devolved matters.”
In its recent report ‘The Impact of Brexit on Devolution’, the Scottish Parliament’s Constitution, Europe, External Affairs and Culture (CEEAC) Committee noted that since 2016 there has been a marked increase in the number of delegated powers taken by UK Ministers to act in devolved areas. These are powers both in areas formerly governed by EU law and in areas not previously within the scope of EU law. Examples are seen in the Police, Crime, Sentencing and Courts Act 2022 and the Health and Care Act 2022.
The result is that more secondary legislation which is within the Scottish Parliament’s competence may be made in the UK Parliament rather than in the Scottish Parliament. The CEEAC Committee concluded in its report that:
“the extent of UK Ministers’ new delegated powers in devolved areas amounts to a significant constitutional change. We have considerable concerns that this has happened and is continuing to happen on an ad hoc and iterative basis without any overarching consideration of the impact on how devolution works.”
The sunset date
The Bill provides that most REUL will be revoked automatically at the end of December 2023 (the ‘sunset’) if steps are not taken to save it. The sunset can be extended by UK Government Ministers, although not beyond 23 June 2026. Scottish Ministers (and Ministers of other devolved government) are not given the power to be able to extend the sunset under the Bill.
The Scottish Government’s LCM states that:
“The 31 December 2023 sunset date for over 2,400 pieces of REUL creates an unacceptably high risk that vital standards and protections are not properly considered and may, through oversight, disappear overnight at the end of the period. The Scottish Government considers this to be a reckless way to proceed with this crucial legislative framework, and that, if passed in this form, the Bill will create extremely significant burdens on both government and Parliament, potentially jeopardising other elements of the legislative programme and Parliament’s work.”
The issue is a practical one given the amount of work which would be required to identify all REUL in devolved areas, and make decisions as to its future (e.g. whether it should be kept or allowed to fall at the end of December 2023). For the Parliament there is also a challenge in the sheer volume of secondary legislation which may result from the Bill and the timetable within which it would require to be scrutinised. There is also a possibility that some REUL may be overlooked and inadvertently fall from the statute book.
Some of these issues were discussed by witnesses during the CEEAC Committee’s first evidence session on the Bill on 10 December 2022.
What happens now?
The LCM indicates that the Scottish Government has already requested in communications with the UK Government that:
- devolved areas of REUL are excluded from the December 2023 sunset
- devolved areas of REUL are excluded from other provisions of the Bill which could affect the “coherence and application” of REUL in Scots law (including, for example, the principle of supremacy)
- a consent requirement is included in the Bill when UK Ministers use powers in devolved areas.
The LCM also states that “Scottish Ministers should have broadly equivalent powers for example in extending the sunset for specified REUL”. As explained above, as introduced the Bill only gives UK Ministers the power to extend the sunset, even for REUL in devolved areas.
It is now for the Scottish Parliament to consider the LCM. The Delegated Powers and Law Reform Committee will consider the LCM and will report on the delegation of powers and the CEEAC Committee, as the lead Committee, will consider the LCM more widely. You can keep up-to-date with the work of both Committees on the Scottish Parliament’s website.
Sarah McKay, Senior Researcher, SPICe